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Accident Compensation Cases

Bailey v Accident Compensation Corporation (HC, 14/06/16)

Judgment Text

JUDGMENT OF PALMER J 
Palmer J
Summary 
[1]
Mr David Bailey received ACC compensation for a back injury from 11 September 2001. His payments were suspended in late 2004. They were reinstated by the District Court in 2010 and backdated compensation paid. ACC refused to pay interest on the arrears from the date of suspension. The District Court declined Mr Bailey's appeal based on the Court of Appeal's creation in Accident Compensation Corporation v Miller of four different categories of such cases in interpreting s 114 of the Accident Compensation Act 2001.1
| X |Footnote: 1
Accident Compensation Corporation v Miller [2013] NZCA 141, [2013] 3 NZLR 312Has Litigation History which is not known to be negative[Blue] 
Mr Bailey seeks special leave to appeal to the High Court to make two arguments. 
[2]
I am bound by the Court of Appeal's decision in Miller which does not allow for an alternative interpretation of the Act that would otherwise justify leave to appeal. Miller also disposes of one of Mr Bailey's arguments since there is insufficient basis to argue, as a question of law, that his case does not fall into category 4. I do not agree his other argument, that the District Court did not properly take into account the conduct of the insurer, is a question of law. I therefore decline Mr Bailey's application. 
[3]
The judgment outlines what happened, explains the relevant law, including an alternative interpretation of it, and then deals with the two issues. 
What happened here 
[4]
Whatever the other significance of 11 September 2001 that was the date Mr Bailey tried to save a box of air cargo from falling to the ground at Auckland Airport. He suffered a disc injury to his back and started receiving accident compensation payments. 
The battle of medical opinions 
[5]
Mr Bailey's condition was assessed by a variety of specialists in 2002 to 2004. Opinions as to its cause differed between specialists and over time. 
[6]
In 2002 Mr Geoffrey Coldham, an orthopaedic surgeon, performed two discectomies to remove disc material. Dr Keith Laubscher, a pain specialist gave Mr Bailey epidural steroid injections for pain. 
[7]
Mr Bailey's insurer, Care Advantage sought a view from Dr Courtenay Kenny, an occupational physician, on the causes of Mr Bailey's incapacity. In March 2003 Dr Kenny thought the condition was more consistent with development of a chronic pain disorder. In 2003 and 2004 Care Advantage took further advice from Mr Coldham, Dr Laubscher and Dr Kenny and also from Professor Des Gorman and Dr Penny Waring, occupational medical specialists at the University of Auckland. 
[8]
A case conference of the occupational specialists concluded on 26 August 2004 that it was highly probable Mr Bailey had developed a chronic pain disorder which was probably exacerbated by, but was “highly unlikely” to have been caused by, Mr Bailey's cargo handling accident. Care Advantage suspended Mr Bailey's entitlements, reinstated them temporarily pending further reports, and then finally suspended them on 22 December 2004, effective from 21 January 2005. 
Battle recommences in court 
[9]
Mr Bailey's review of the decision in 2005 was unsuccessful. However, in 2010 he obtained legal advice. Counsel sought further opinion from Mr Coldham. 
[10]
On 1 November 2010 Mr Coldham wrote a specialist report to the effect that Mr Bailey's pain syndrome was “secondary to the [disc] injury he suffered [in 2001] and the subsequent surgery that was performed.” Mr Coldham based this opinion on his notes from his work with Mr Bailey between 2002 and 2004 as well as a later examination in September 2010. The Corporation subsequently sought further opinion from Dr Kenny, who reiterated his earlier view that Mr Bailey's condition was a result of a disc degenerative disease and not a result of his injury. Litigation ensued. 
[11]
In April 2014 the District Court found, on the basis of Mr Coldham's 2010 evidence, that the 11 September accident was the substantial precipitator of Mr Bailey's condition.2
| X |Footnote: 2
Bailey v Accident Compensation Corporation [2012] NZACC 142 (Entitlements Judgment). 
I refer to this as Judge Joyce QC's Entitlements Judgment. Mr Bailey's entitlements were reinstated with effect from the date they were suspended.3
| X |Footnote: 3
At [45]. 
 
The battle for interest 
[12]
ACC refused to pay interest on the backdated compensation from the date of suspension. Mr Bailey sought review of that decision which was successful in yielding a decision that interest should run from 1 November 2010 — the date of Mr Coldham's report. 
[13]
Mr Bailey, however, thought it should run from the effective date of suspension, like his backdated compensation. He appealed to the District Court. 
[14]
This time, in his Interest Judgment, Judge Joyce considered the law required him to turn down Mr Bailey's claim.4
| X |Footnote: 4
Bailey v Accident Compensation Corporation [2014] NZACC 104Has Litigation History which is not known to be negative[Blue]  (Interest Judgment). 
Furthermore, Judge Harrison declined Mr Bailey's application for leave to appeal to the High Court.5 Now I have to decide whether to grant special leave to appeal Judge Joyce's Interest Judgment to the High Court. 
The relevant law 
Special leave to appeal 
[15]
Section 162(3) of the Accident Compensation Act 2001 (the Act) empowers the High Court to grant special leave to appeal a decision of the District Court as being wrong in law, where the District Court has declined leave to appeal. 
[16]
In Jones v ACC, drawing on summaries by Toogood J in Cullen v ACC,6
| X |Footnote: 6
and by Fisher J in Kenyon v ACC,7
| X |Footnote: 7
Kenyon v Accident Compensation Corporation [2001] NZHC 1301, [2002] NZAR 385Has Cases Citing which are not known to be negative[Green] 
I summarised the relevant authorities as follows:8
| X |Footnote: 8
Jones v Accident Compensation Corporation [2016] NZHC 707Has Litigation History which is not known to be negative[Blue]  at [6]. 
 
1)
The appeal can only be made on a question of law and it is for the appellant to show that leave is required in the interests of justice. 
2)
The purpose of requiring leave for certain appeals is to ensure that scarce judicial time is allocated sensibly. 
3)
Special leave is a matter for the discretion of the Court and ought not to be granted as a matter of course. 
4)
It will normally be necessary to show that there is an issue of principle, or a considerable amount, at stake and that there is a reasonable prospect of success. 
The purpose of the ACC legislation 
[17]
Purposive statutory interpretation of any Act requires reference to Parliament's purpose in enacting it. The Court of Appeal noted in 1998 that provisions in this Act “must be interpreted as a whole having regard, not only to the language that is used, but also to the context of the subsection, to the scheme and purpose of the Act, with reference, if that is necessary, to the history and policy of the legislation and to the consequences of the interpretation which is under consideration”.9
| X |Footnote: 9
Queenstown Lakes District Council v Palmer [1999] 1 NZLR 549 (CA)Has partially negative history or cases citing, but has not been reversed or overruled[Yellow]  at 553. 
In April 2016 the Court of Appeal endorsed that again.10
| X |Footnote: 10
Accident Compensation Corporation v Algie & Ors [2016] NZCA 120Has Litigation History which is not known to be negative[Blue]  at [15]. 
 
[18]
The New Zealand Parliament's original purpose in enacting the accident compensation regime is still reflected in s 3 of the Act: 
“The purpose of this Act is to enhance the public good and reinforce the social contract represented by the first accident compensation scheme by providing for a fair and sustainable scheme for managing personal injury that has, as its overriding goals, minimising both the overall incidence of injury in the community, and the impact of injury on the community (including economic, social, and personal costs) ”
[19]
The social contract represented by the first accident compensation scheme originated in the 1967 Royal Commission of Inquiry Report, Compensation for Personal Injury in New Zealand under the chairmanship of Justice Woodhouse (subsequently the Rt Hon Sir Owen Woodhouse), the “Woodhouse Report”. The report proposed a no fault system of compensation for personal injury based on five guiding principles:11
| X |Footnote: 11
Compensation for Personal Injury in New Zealand: Report of the Royal Commission of Inquiry (Government Printer, Wellington, 1967) [Woodhouse Report], at [4]. And see Geoffrey Palmer Compensation for Incapacity: A Study of Law and Social Change in New Zealand and Australia (Oxford University Press, Wellington, 1979). 
community responsibility; comprehensive entitlement; complete rehabilitation; real compensation; and administrative efficiency. 
[20]
The 1972 Act, based on the Woodhouse Report, represented a trade-off in loss of the common law right to sue for general damages for personal injury in return for state prevention of accidents, promotion of rehabilitation of the injured and assured provision of compensation for injury irrespective of fault. These aims are still reflected in the paragraphs of s 3. In 1985 Cooke J, as he then was in the Court of Appeal, after referring to these three major purposes, described the Act as “a kind of social charter, largely replacing the common law in a defined field.”12
| X |Footnote: 12
Brightwell v ACC [1985] 1 NZLR 132 (CA)Has Cases Citing which are not known to be negative[Green]  at 139-140 per Cooke J. 
In 1991 Thomas J, for a five member Court of Appeal, in Queenstown Lakes District Council v Palmer, stated:13
| X |Footnote: 13
Queenstown Lakes District Council v Palmer [1999] 1 NZLR 549Has partially negative history or cases citing, but has not been reversed or overruled[Yellow]  at 555. 
 
“Essentially, the accident compensation legislation in both its original and amended forms denied those persons covered under the Act access to the Courts at common law in return for the perceived advantages of the statutory scheme. The legislation reflected this policy from the outset. The exchange has frequently been spoken of as a social contract or social compact. ”
[21]
The social contract philosophy underlying ACC is also reflected in the Supreme Court's judgment in Allenby v H in 2012. The Court held that denial of cover for the appellant's pregnancy consequent upon medical misadventure “would not be consistent with the overall spirit of the statute which appears to us still, after 1992, intended to provide universal coverage for accidents and for the consequences of medical misadventure.”14
| X |Footnote: 14
Allenby v H [2012] NZSC 33, [2012] 3 NZLR 425Has Litigation History which is not known to be negative[Blue]  at [78]. 
 
[22]
The essence of the compensation part of the scheme relies on claimants, who are entitled, being paid. Under s 100 of the Act, a claimant who “has cover” (per s 8) and who lodges a claim for weekly compensation, “is entitled to receive it” if the Corporation determines the claimant is incapacitated under ss 103 or 105. That requires an eligible claimant to be unable, because of his or her personal injury, to engage in his or her employment or to engage in work for which he or she is suited. 
The legislative provisions on interest 
[23]
Detailed legislative provisions are necessary to make any high-minded social contract work. Relevant to this case are the provisions relating to interest. 
[24]
From time to time it will happen that the Corporation will make a mistake in paying, or not paying, compensation to those who are entitled to it when they are entitled to it. Since 1992, the Corporation has been required to pay interest in that circumstance. As the Court of Appeal stated in Cullen v Accident Compensation Corporation, the purpose of s 114 of the Act is to ensure a claimant is not left out of pocket as a result of a late payment of compensation to which a claimant is “entitled”.15
| X |Footnote: 15
Cullen v Accident Compensation Corporation [2014] NZCA 94Has Litigation History which is not known to be negative[Blue]  at [9] and [10]. 
Or, as the Court of Appeal put it in Accident Compensation Corporation v Kearney, being paid when a claimant should have been paid “is the very purpose of the interest provision”.16
| X |Footnote: 16
Accident Compensation Corporation v Kearney [2010] NZCA 327Has Litigation History which is not known to be negative[Blue]  at [35]. 
 
[25]
Because of the time value of money, late payment of an entitlement means that less than the full value of the entitlement is received by a claimant. An entitlement is just that. It should not be diminished by a mistaken failure by the Corporation to pay the entitlement when it is due. That would undermine the social contract underlying the Act. 
[26]
Section 114 provides: 
“114
Payment of interest when Corporation makes late payment of weekly compensation 
(1)
The Corporation is liable to pay interest on any payment of weekly compensation to which the claimant is entitled, if the Corporation has not made the payment within 1 month after the Corporation has received all information necessary to enable the Corporation to calculate and make the payment. 
(2)
The Corporation is liable to pay the interest — 
(a)
at the rate for the time being prescribed by, or for the purposes of, section 87 of the Judicature Act 1908; and 
(b)
from the date on which payment should have been made to the date on which it was made. ”
[27]
As the Court of Appeal notes in Miller the original version of s 114 was s 72 of the Accident Rehabilitation and Compensation Act 1992.17
| X |Footnote: 17
Miller, above n 1. 
It was introduced into the Bill as an amendment by Supplementary Order Paper. There's no indication of Parliament's intention regarding s 72 in the legislative history of that Bill or in the legislative history of the equivalent sections in either the 1998 or 2001 Acts. The explanatory notes of the 1998 and 2001 Acts simply say that the provision states a “duty to pay interest on late payments of weekly compensation”. Accordingly, the meaning of s 114 must be interpreted according to its text and in light of its purpose. The Court of Appeal has done so in several key decisions. 
Kearney: Obligation to pay interest not obviated by Corporation's failure 
[28]
In Kearney v Accident Compensation Corporation Mr Kearney was injured in February 1985 and his payments were terminated in July 1991. In October 2004 the Corporation accepted they should not have been terminated. Backdated compensation was paid. The Corporation maintained it did not have the financial information necessary to calculate the backdated compensation until 1 July 1992 and, therefore, that interest was not payable for the compensation owing before then. 
[29]
However, the reason the Corporation did not have the information was the Corporation's own fault. In July 2010 Chambers J, on behalf of the Permanent Court, said this:18
| X |Footnote: 18
Accident Compensation Corporation v Kearney, above n 16 at [32] (emphasis added). 
 
“The structure of the accident compensation scheme is this. Those who are injured by accident and who lose earnings as a consequence are entitled to receive earnings-related compensation from the Corporation as a substitute for the income they would otherwise have earned. The compensation is payable on a weekly basis. Since 1992, Parliament has decreed that the Corporation should have to pay interest if it is late in paying compensation. That is fair: after all, claimants are dependent on this compensation to live. But Parliament qualified the Corporation's obligation in one respect. If the Corporation did not have all the information it needed to enable calculation of the payment, the obligation to pay interest did not arise until such information was forthcoming. In our view, it was implicit in that qualification that the Corporation would ask for information it needed in a timely way. Accident victims could not be expected to mind-read or to search through the immensely complicated legislation themselves. Parliament would not have countenanced a regime whereby the Corporation sat by, requested nothing, and then later attempted to take advantage of the qualification to its obligation to pay interest on late payments. Still less could Parliament have intended the Corporation to be able to represent to an accident victim it (wrongly) did not need any further information, and then later be able to take advantage of that error. In short Parliament would not have envisaged a situation where the Corporation sought to benefit from its own wrong.19
| X |Footnote: 19
Salt v Governor of Pitcairn and Associated Islands [2008] NZCA 128, [2008] 3 NZLR 193Has partially negative history or cases citing, but has not been reversed or overruled[Yellow]  at [90] (citation in original). 
 ”
[30]
Accordingly, interest was found to start accruing at the earliest date possible (when the effect of the interest provision began, in 1992). 
Miller: Obligation to pay interest obviated if original decision based on conclusive medical evidence 
[31]
In Accident Compensation Corporation v Miller Mr Miller was paid compensation for injuries in 1974 and 1977.20
| X |Footnote: 20
Miller, above, n 1. 
The payments were terminated in 1978. They were reinstated in 2003 when Mr Miller was found to have been entitled to weekly compensation since 1974. The Corporation maintained it did not have the medical information necessary to calculate the payment until 2001. Simon France J, relying on the Court of Appeal's judgment in Kearney, held that interest started accruing at the earliest point possible, in 1992.21
| X |Footnote: 21
Miller v Accident Compensation Corporation HC Wellington CIV-2011-485-1702, 16 December 2011
 
[32]
The Civil Division of the Court of Appeal was confronted with arguments, based on Kearney, about whether the Corporation was “at fault” or not in its delay in paying Mr Miller. This might be thought somewhat ironic in the interpretation of a no-fault system of compensation. The focus on fault drove the Court's reasoning. 
[33]
Stevens J, for the Court, considered the purpose of s 114 was “to compensate claimants for delays in processing their entitlements” and to “deter the Corporation from unnecessary delay”.22
| X |Footnote: 22
Miller, above n 1, at [40]. 
The Court proceeded on the basis that “[i]t is now well established that interest will run from the first date on which it can be said that the Corporation holds ‘all information necessary’.23
| X |Footnote: 23
Miller, above n 1, at [41]. 
The focus is on the date when the Corporation “is first in possession of the necessary information to make the same decision as that eventually reached on review or appeal”.24
| X |Footnote: 24
At [41]. 
It found that information included medical information that the injury was caused by an accident.25
| X |Footnote: 25
At [42]-[44]. 
 
[34]
The Court then identified “four possible scenarios in which the Corporation might make a decision to cancel or suspend compensation that is later overturned on appeal”:26
| X |Footnote: 26
At [47]. 
 
1)
The Corporation makes an error in interpreting the statute. 
2)
The Corporation misinterprets medical advice. 
3)
The Corporation receives and correctly interprets ambiguous medical advice, and reaches the conclusion that compensation ought to be cancelled, but later advice reveals that decision to be incorrect. 
4)
The original medical advice provided to the Corporation conclusively supports the cancellation of compensation, but later advice reaches a different conclusion. 
[35]
The Court considered the requirement for the Corporation to have “all information necessary” would be satisfied at the time of suspension in the first three scenarios.27
| X |Footnote: 27
At [48]-[49]. 
But it considered: 
“In (4), however, it cannot be said that the Corporation had ‘all information necessary’ to calculate the payment. That is because where all medical evidence available to the Corporation pointed against compensation it is not open to the Corporation to calculate and make the payment. In this circumstance interest will not become payable until such date as the Corporation does receive ‘all necessary information’. When determining when ‘all necessary information’ is received, however, the Court must keep in mind that claimants ought not to be penalised for failure to provide information that has not been requested by the Corporation.28
| X |Footnote: 28
Applying Accident Compensation Corporation v Kearney, above n 16. 
Any new information received by the Corporation should be promptly assessed and, if it necessary to seek further information either from the claimant or from (say) an independent assessor, this must be done without delay. ”
[36]
These categories all involve situations where the receipt of subsequent information that a claimant's medical condition did entitle, and always had entitled, a claimant to compensation. Yet, in category (4), the Court of Appeal considers a claimant is not entitled to interest on that compensation if previous medical advice had “conclusively” supported a decision that the claimant was not so entitled. The Court considered “it cannot be correct that, whenever the Corporation has been paying compensation, stops it, and later it is held that the compensation should have been continued, the claimant will be entitled to interest because at the time of suspension or cancellation it had all the information it needed”.29
| X |Footnote: 29
At [56]. 
 
[37]
The distinction between Miller's third and fourth categories is relevant here. 
An alternative interpretation 
[38]
An alternative interpretation of s 114, which I discussed in the hearing with counsel for both parties, would be as follows: 
1)
Where a claimant is not paid weekly compensation to which he or she is entitled, and is subsequently paid backdated compensation, the Corporation must pay interest on the backdated compensation to the claimant (subs (1)). 
2)
The amount of interest to be paid is determined by the Judicature Act 1908 (subs (2)(a)). 
3)
The point at which the Corporation is liable to pay interest is within 1 month of it having all the necessary information to make the payment (subs (1)). 
4)
The date from which interest should run is the date the claimant began not to receive his or her entitlement (subs (2)(b)). 
5)
The date to which interest should run is the date on which payment was actually made (sub (2)(b)). 
[39]
This interpretation would distinguish between (the italicised) dates at which the Corporation is liable to pay interest and at which interest starts accruing. Those may be different. Liability to pay requires, as an administrative matter, the Corporation to have all the information necessary for it to calculate and pay interest. There's no point in making it liable to pay otherwise. But that date is not necessarily the same as the date at which interest starts accruing. If the Corporation does not have administrative information necessary to pay a claimant then it makes sense that it should not be liable to pay interest until it does. But that does not affect the claimant's entitlement to compensation for being injured, does not affect whether the claimant is out of pocket in his or her receipt of compensation and therefore could be seen not to affect the date at which interest should start accruing. 
[40]
This interpretation would also distinguish between (the bolded, in the above list) “entitlement” and “payment”. The phrase “is liable to pay interest on any payment of weekly compensation to which the claimant is entitled” in s 114(1) indicates that liability to pay interest is predicated on a claimant being entitled to compensation. The Permanent Court of Appeal's judgment in Cullen is authority for that.30
| X |Footnote: 30
Cullen v Accident Compensation Corporation, above n 15, at [9] “There must in fact be a late payment of compensation to which the claimant was entitled before any interest is payable on the payment”
That was delivered after Miller and rejected an argument it was inconsistent with Miller.31
| X |Footnote: 31
At [10]. 
The “payment” referred to several times in the section would then be simply that — the mechanics of payment — the mechanics of “payment of weekly compensation to which the claimant is entitled”. “Calculating and making payment” would not involve determination of the claimant's entitlement, which is determined by the claimant's incapacity under ss 100, 103 and 105 of the Act. And “all information necessary” would be all information necessary to calculate and make the payment, not all information necessary to determine entitlement. 
[41]
Accordingly, the phrase “the date on which payment should have been made”, in s 114(2)(b), would be interpreted as the first date on which a claimant was not paid what is subsequently determined to be the claimant's entitlement. This approach would match the availability of interest to their entitlement to compensation. The claimant would receive what they were entitled to all along. They would not be out of pocket because the interest would reflect the time value of money. This interpretation could be seen as fulfilling the social contract underlying the ACC regime and as consistent with a purposive interpretation of the Act. 
[42]
But this alternative approach would not be consistent with the Court of Appeal's judgment in Miller. The fundamental difference is that the Court interprets “all information necessary” to include information necessary to determine entitlement. The alternative interpretation would take entitlement as already established (albeit retrospectively) and “all information necessary” would refer only to the mechanics of payment. 
[43]
I do not regard the alternative interpretation as available, in light of the Court of Appeal's judgment in Miller. The Court's four categories were central to its reasoning. Only the Court of Appeal can change them.32
| X |Footnote: 32
The Court of Appeal's decision on leave to appeal, or an appeal, is final, s 163(4). The Supreme Court does not have jurisdiction: ss 7(b) and 8(b) Supreme Court Act 2003 and Howard v Accident Compensation Corporation [2014] NZSC 31, (2014) 21 PRNZ 815Has Litigation History which is not known to be negative[Blue] 
I regard it as binding on me and I apply it here. 
Issue 1: Is this Miller category 3 or Category 4? 
[44]
Mr Schmidt, on behalf of Mr Bailey, submits that in its Interest Judgment the District Court erred in law because it did not correctly apply the concept of conclusive medical evidence in terms of category 4 of Miller. Rather, he submits that the evidence does not support a finding that “[a]s of December 2004 there was no indication of ambiguity” regarding the cause of Mr Bailey's back pain.33
| X |Footnote: 33
The Interest Judgment, above n 4, at [30]. 
In order to establish ambiguity in the medical evidence Mr Schmidt invites me to delve into medical reports and advice from 2003 to 2005. If there was ambiguity then the case would fall into Miller category 3 rather than 4 and interest would be payable. Is this a question of law which has a reasonable prospect of success? 
[45]
The most significant barrier to Mr Schmidt's submission is that it concerns a question of fact rather than one of law, which is the only basis on which Mr Bailey can seek special leave to appeal. As the Supreme Court stated in Bryson v Three Foot Six“[a]n appeal cannot, however, be said to be on a question of law where the fact finding Court has merely applied law which it has correctly understood to the facts of an individual case”.34
| X |Footnote: 34
Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721Has Litigation History which is not known to be negative[Blue]  at [25]. 
That is what Judge Joyce did here, as Judge Harrison found when he declined leave to appeal.35
| X |Footnote: 35
Bailey v Accident Compensation Corporation, above n 5 at [22]. 
 
[46]
The only basis on which Mr Schmidt's argument could succeed is if he has a reasonable prospect of success in arguing that the District Court's conclusion was not one to which it could reasonably have come on the evidence. This refers to the “rare” category of case in which the Supreme Court in Bryson characterised a finding of fact as “so unsupportable — so clearly untenable — as to amount to an error of law: proper application of the law requires a different answer”.36
| X |Footnote: 36
Bryson v Three Foot Six, above n 34, at [26] 
One way of putting that, based on Edwards v Bairstow, is if “the true and only reasonable conclusion” contradicts the determination.37
| X |Footnote: 37
Edwards v Bairstow [1956] AC 14Has Cases Citing which are not known to be negative[Green] . And see Vodafone New Zealand Ltd v Telecom New Zealand Ltd [2011] NZSC 138, [2012] 3 NZLR 153Has Litigation History which is not known to be negative[Blue]  at [54]-[58]. 
 
[47]
I am satisfied that such an argument does not have a reasonable prospect of success here. The 2003 to 2005 evidence was all before Judge Joyce in deciding the Interest Judgment in 2014. He considered the advice of Mr Coldham in November 2010 was “pivotal” to his 2012 finding that Mr Bailey was entitled to compensation.38
| X |Footnote: 38
The Interest Judgment, above n 4, at [29]. 
He stated, in summary, before concluding that the case fell into the fourth Miller category:39
| X |Footnote: 39
The Interest Judgment, above n 4, at [30]. 
 
“[30]
I would, in any event, count it clear from the accumulated evidence now before me that: 
[a]
In December 2004, the pertinent medical advice in the hands of the Corporation entirely supported the cancellation of compensation; 
[b]
The numerous Coldham reports of 2002 had as their then understandable focus the patient, his problems and what could be done to remedy or ameliorate those rather than issues of causation; and 
[c]
The mark of this case in December 2004 was (as the reviewer noted) that an earlier divergence of opinion on causation between Professor Gorman and Dr Waring on the one hand, and Dr Kenny on the other, had to every appearance been rightly resolved in terms that it was highly probable that Mr Bailey suffered from chronic pain disorder prior to his injuries, so that those had merely exacerbated the problem; thus 
[d]
As of December 2004 there was no indication of ambiguity. ”
[48]
I consider that this summary fairly reflects the evidence. Any room for doubt about that certainly does not rise to the required level that the true and only reasonable determination contradicts Judge Joyce's finding on the facts. 
[49]
Accordingly, this is not a basis upon which I may grant special leave to appeal on a question of law. 
Issue 2: Has the Court properly taken into account Care Advantage's conduct? 
[50]
Mr Schmidt also submits that the Court of Appeal's judgment in Miller states that the conduct of the insurer must be assessed when deciding when all relevant information was available, in order to ensure that the insurer cannot profit from its own error. Mr Schmidt submits the District Court did not properly take into account Care Advantage's conduct. He invites me to draw an inference that neither Care Advantage nor Dr Kenny wanted outside opinion during his investigation because it could be at odds with their position. And he criticises ACC for litigating the matter to its conclusion. 

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